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Saturday, April 2, 2016

Guatemalan Women File Claims against Canadian mining conglomerate: Puts Focus on the Conduct of Canadian Firms Abroad

Photo: Adriana Zehbrauskas/nytimesAngelica Choc, right, sued a
Canadian company in the 2009 killing of her husband, a local leader, and
Rosa Elbira Coc Ich, left, says she was evicted and gang-raped in 2007.

' The men who came to evict me from my land said it belonged to a Canadian mining
company, also took turns raping me. After that, they dragged me from my home and set it ablaze.'

“The
fear is not over,” “I still fear, all the time.” - Mrs. Caal said, recently

Filed her negligence suit, Caal v. Hudbay Mineral Inc., not in Guatemala, where Mayan villagers like her, illiterate and living in isolated areas, have had little legal success, but in Canada, Law suit has sent
shivers through the vast Canadian mining, oil and gas industry.

Continue for full story ...

For
decades, overseas subsidiaries have acted as a shield for extractive
companies even while human rights advocates say they have chronicled a
long history of misbehavior, including environmental damage, the violent
submission of protesters and the forced evictions of indigenous people.

Her husband was away in the fields, in lake Ocho Guatemala she said, when
the truckloads of soldiers, police officers and mining security
officials arrived. A half-dozen armed men swarmed into her one-room
house, blocking her exit and helping themselves to the meal she had made
for her children.

For
a long time, the woman, Margarita Caal Caal, did not talk about what
happened next that afternoon. None of the women in this tiny village
high in the hills of eastern Guatemala
did, not even to each other. But that day, Mrs. Caal said, the men who
had come to evict her from land they said belonged to a Canadian mining
company also took turns raping her. After that, they dragged her from
her home and set it ablaze.

“The
fear is not over,” she said recently, staring down at her hands while
her daughter served coffee to visitors. “I still fear, all the time.”

Mrs. Caal has taken her case to the courts, but not in Guatemala, where Mayan villagers like her, illiterate and living in isolated areas, have had little legal success. She has filed in Canada,
where her negligence suit, Caal v. Hudbay Mineral Inc., has sent
shivers through the vast Canadian mining, oil and gas industry. More
than 50 percent of the world’s publicly listed exploration and mining
companies had headquarters in Canada
in 2013, according to government statistics. Those 1,500 companies had
an interest in some 8,000 properties in more than 100 countries around
the world.

For
decades, overseas subsidiaries have acted as a shield for extractive
companies even while human rights advocates say they have chronicled a
long history of misbehavior, including environmental damage, the violent
submission of protesters and the forced evictions of indigenous people.

Photo: Adriana Zehbrauskas/nytimes

Rosa Elbira Coc Ich in Lote
Ocho, Guatemala, where she used to live and where, she said, she was
among several women gang-raped in 2007.But
Mrs. Caal’s negligence claim and those of 10 other women from this
village who say they were gang-raped that day in 2007, as well as two
other negligence claims against Hudbay, have already passed several
significant legal hurdles — suggesting that companies based in Canada
could face new scrutiny about their overseas operations in the future.
In June, a ruling ordered Hudbay to turn over what Mrs. Caal’s lawyers
expect will be thousands of pages of internal documents. Hudbay, which
was not the owner of the mine at the time of the evictions, denies any
wrongdoing.

Canadian
law does not provide for huge American-style payoffs, even if the court
rules in the plaintiff’s favor. But the Hudbay case is being watched
carefully because it appears to offer a new legal pathway for those who
say they have suffered at the hands of Canadian subsidiaries. A ruling
in this case, experts say, could also help establish powerful guidelines
for what constitutes acceptable corporate behavior.

“Up
until now, we just have not had judicial decisions that help us
consider these sorts of relationships,” said Sara Seck, an expert on
corporate social responsibility at the Faculty of Law, Western
University, in London, Ontario. “For once, the court is going to look at
what really happened here, and that is important.”

Photo: Adriana Zehbrauskas/nytimes The Fenix nickel mine in El Estor, a town near Lote Ocho.The
behavior of multinational companies working in poor countries has come
under increasing fire in recent years. Social expectations have changed,
experts say, with many citizens of rich countries demanding that
corporations be more responsible in the countries where they operate. In
Canada, efforts to define a code of good behavior for extractive
corporations are longstanding, if so far unsuccessful. Many mining
companies are based there because Canada offers a concentration of
expertise in mining finance and law, and the government offers
incentives including tax breaks.

A
bill that would have created an ombudsman to investigate complaints and
deny access to government loans - and even consular services - to
companies accused of behaving poorly failed by a narrow margin in 2010
after facing fierce opposition from the extractive industry. John McKay,
a member of Parliament from the Liberal Party who sponsored that bill,
said he expected Canada’s new government to try again soon.

“There are companies out there doing things that they would never do in their own countries,” he said.In a 2014 report,
the Council on Hemispheric Affairs, a policy group in Washington,
concluded that Canadian companies, accounting for 50 percent to 70
percent of the mining in Latin America, were often associated with
extensive damage to the environment, from erosion and sedimentation to
groundwater and river contamination. Of particular note, it said, was
that the industry “demonstrated a disregard for registered nature
reserves and protected zones.”

At the same time, the report said, local people were being injured, arrested or, in some cases, killed for protesting.

Photo: Adriana Zehbrauskas/nytimes Angelica Choc, at the grave
of her husband, Adolfo Ich Chamán, in El Estor. Mr. Ich was killed
during a demonstration against mining in 2009.

Victims,
however, have had little success gaining access to Canadian courts.
Their lawyers have often tried to get cases heard on the basis of
violations of human rights or international criminal law. But most were
told that Canada had no jurisdiction, and that their claims would be
more appropriately heard in the country where the events took place,
even if that country’s courts were notoriously corrupt or otherwise
dysfunctional.

The
lawyers for the plaintiffs in the Hudbay case, Murray Klippenstein and
Cory Wanless, took a novel approach, however, making a simpler claim.
They said the Canadian parent company was negligent for failing to put
an effective monitoring system in place to understand what its
Guatemalan subsidiary was doing. Framing the claim in this way allowed
the plaintiffs to draw a clear connection between the negligence and
Canada.In
addition to the claims brought by Mrs. Caal and the other women who say
they were raped in Lote Ocho, Hudbay, based in Toronto, is facing
claims over the death of a prominent local leader, Adolfo Ich Chamán,
50, and the shooting and paralysis of a bystander, German Chub, 28,
during demonstrations against mining in the nearby town of El Estor in
2009.

Photo: Adriana Zehbrauskas/nytimes German Chub, 28, was shot during mining protests in 2009, leaving him paralyzed from the waist down.

Hudbay
lawyers moved to have the case dismissed both because of jurisdictional
grounds and because it was “plain and obvious” that the claims would
fail. Before the ruling on jurisdiction, they dropped that claim and
went forward with the other one. In July 2013, however, the judge ruled
it was not obvious that the claims were without merit.Turning
to the courts has not been easy for the plaintiffs, most of whom speak
only Q’eqchi’, a Mayan language, have had little or no schooling, and
find the prospect of going to Canada terrifying. In addition, they face
animosity from a sizable portion of the local population, particularly
in El Estor, where there is a giant nickel processing plant.Hudbay
officials dispute most of the plaintiffs’ claims. They say that no
mining security officials were present during the Lote Ocho evictions
and that no rapes took place. The company’s website also points out that
at the time, Hudbay had nothing to do with the mine. It was owned by
Compañía Guatemalteca de Níquel, a subsidiary of another Canadian
company, Skye Resources Inc., which Hudbay bought in 2008, assuming its
liabilities. Hudbay has since sold the mine.

Photo: Adriana Zehbrauskas/nytimes Children played on a truck in
Lote Ocho. The community consists of about a dozen flimsy wooden
houses, home to about 100 people, most of them children.Credit
Adriana Zehbrauskas for The New York Times

Hudbay
officials also maintain that there was no negligence in 2009 when it
did own the mine. Officials say the killing of Mr. Ich, a teacher, and
the shooting of Mr. Chub, a farmer, took place as the mine’s security
guards were defending themselves from armed protesters.But
some recent events appear to lend credence to the plaintiffs’ claims.
The head of the mine’s security during the 2007 evictions and the 2009
shootings, a former army colonel named Mynor Padilla, is now on trial in
Guatemala over the shooting of Mr. Ich and Mr. Chub.Moreover,
an army officer and a paramilitary officer were convicted in February
of raping and enslaving indigenous women in the 1980s, during
Guatemala’s long civil war, suggesting, some advocates say, that such
behavior has long been entrenched in this country. During the war
between the United States-backed government and leftist rebels, the
indigenous population in this region was repeatedly attacked for trying
to make land claims.Even now, the local Q’eqchi’ population believes much of the land in the area belongs to it, and not to the mining company.At
the time of Mrs. Caal’s eviction, there was no mining anywhere near
Lote Ocho, but mining officials moved to evict the villagers anyway. The
community is made up of about a dozen scattered, flimsy wooden houses,
home to about 100 people, most of them children.There
is no electricity here or a school for the children. The village is a
bumpy 45-minute ride in a pickup truck uphill from the nearest town. But
that costs money, so most of the villagers walk there using a footpath,
which takes about two hours.Mrs.
Caal said the armed men who attacked her during the eviction were so
brutal with her that she could not get up from the spot where they had
left her. But when her husband asked what had happened to her, she told
him only that she had fallen, afraid of how he might react.It is still a subject she turns to reluctantly.“Remembering is reliving,” Mrs. Caal said. “It hurts. It hurts as a woman.”

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